By Peter Hicks, Employment Attorney
The Consolidated Appropriations Act of 2021 (“Act”), passed by Congress on December 21, 2020 and signed into law by the President on December 27, 2020, extends the tax credits for paid sick and family leave under the Family First Coronavirus Response Act (“FFCRA”), which would have expired on December 31, 2020. However, the mandatory paid sick and family leaves under the FFCRA expired on December 31. As of January 1, 2021, a covered employer may choose to voluntarily continue to provide emergency paid sick leave (“EPSL”) or emergency paid family leave and claim a payroll tax credit associated with the leave. The credit may only be claimed for leave taken by employees through March 31, 2021.
The Act does not appear to create a new bank of EPSL for employees on January 1. Instead, provided employees did not use EPSL in 2020, they may still have available the original 80 hours allotted as of April 1, 2020, essentially rolling over any unused paid sick leave into the new year. Paid family leave, however, is less clear and may reset on January 1 depending on how an employer calculates its leave year (e.g., rolling versus calendar year). Employees may therefore have an additional 12 weeks of leave (only as applied to COVID-19-related childcare absences under the FFCRA) to use by March 31, 2021, of which the last 10 weeks would be paid, even if they used emergency family leave in 2020.
In the new year, employers will need to make some choices to address employee time off related to the pandemic. These options include:
- Choosing to extend the FFCRA paid leaves for employees through March 31, 2021 and claim the payroll tax credit (with the knowledge that the extension may result in a new bank of leave for COVID-19-related childcare to be used through March);
- Relying on existing PTO/vacation/sick leave benefits;
- Providing for unpaid leave only; or
- Creating your own paid leaves in lieu of the voluntary leaves provided by the Act to implement without the benefit of the payroll tax credit.
What choice is right for your business will depend on individual circumstances and factors such as how much paid time was already used by your employees through the end of 2020. The approach you choose should be applied uniformly to all employees to avoid claims of discrimination. Regardless of the option you choose, all employers should be sure to provide written notice to employees of any leave available. Jordan Ramis is available to assist with drafting appropriate notices to employees.
Be aware that the anti-retaliation provisions of the FFCRA still apply to past use of FFCRA benefits, even if an employer chooses not to extend the FFCRA paid leaves. An employer may not discharge, discipline, or otherwise discriminate against an employee who seeks to take leave or took leave in the past as provided for in the FFCRA. In addition, even if you choose not to continue the FFCRA leaves, employees may still have leave available under your sick leave or PTO policies, or existing state or federal leave laws such as the Oregon Family Leave Act (OFLA), Washington Family Leave Act (WFLA), Washington Paid Family and Medical Leave, or the Federal Family and Medical Leave Act (FMLA).
More guidance from the Department of Labor is expected, and we will update you when further information is available. In the meantime, please contact us with any questions or for advice on how to proceed.
Peter Hicks is an employment and commercial litigation attorney and shareholder at Jordan Ramis PC. He can be reached at (541) 797-2079 or peter.hicks@jordanramis.com.
